You May Need a Lawyer: New York Fiduciaries Can’t Represent Themselves in Surrogate’s Court

Pro se estate executor or administrator prohibited from courtEstate executors and administrators are not allowed to represent themselves in New York’s Surrogate’s Courts.

The general rule is that non-attorney individuals are permitted to represent their own interests in court – this is known as proceeding pro se. However, the rule only applies where you are representing your own interests and not that of others. For example, if you sue someone because he or she owes you money, you are not required to hire a lawyer and you have the right to act pro se.

For estate executors or administrators, the pro se rule does not apply. Executors and administrators are fiduciaries obligated to represent the interests of persons interested in the estate, e.g., beneficiaries, creditors. Therefore, when an estate fiduciary is a party to a court proceeding, he or she appears on behalf of all of the persons interested in the estate. Under those circumstances, the fiduciary cannot proceed pro se because a non-attorney representing the interests of other persons would be considered to be practicing law without a license.

Matter of Van Patten, New York County Surrogate’s Court

In a recent case, the New York County Surrogate’s Court addressed the issue of an estate fiduciary appearing pro se. In Van Patten, the non-attorney executor of an estate filed objections to a trustee’s accounting. The court found that the executor could not proceed without the representation of an attorney. The court reasoned that the executor was representing all of the interested persons of the estate, not just herself, constituting the practice of law without a license. The executor argued that she was the only beneficiary of the estate. The court, nevertheless, held that she also had a responsibility to the creditors of the estate and represented their interests.

Matter of Van Patten, 1988-2966.2, NYLJ 1202643818563 (Surr., NY, Decided February 10, 2014)

Matter of Calabrese, Kings County Surrogate’s Court

In Calabrese, the non-attorney administrator of an estate filed a petition in the court asking that the restrictions in her letters of administration be removed to allow her to sell real property. The administrator filed the petition pro se. The court found that the administrator was “merely a nominal party” to the litigation and the true parties were the estate’s beneficiaries. Not being an attorney, the administrator could not represent the estate beneficiaries. The court ordered that the petition be dismissed unless the administrator hired an attorney.

Matter of Calabrese, File No. 3449/B/13 (unpublished decision)

 

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